Publications

A Look Into the Constitutional Understanding of Slavery

Res Publica

April 1995

by Susan L. Boyd

From the time the American colonies first began to form the Union, several questions were raised regarding the relationship of the Constitution of the United States and the institution of slavery. A close look at the document created in Philadelphia in 1787 will reveal the ambiguous language pertaining to the holding of slaves, since the words "slave" and "slavery" were never used in the Constitution.

The Framers debated over the extent to which slavery would be included, permitted, or prohibited in the Constitution. In the end, they created a document of compromise that represented the interests of the nation as they knew it and predicted it to be in the future. Explaining the Framers and the Constitutions understanding of slavery requires a careful look at the three clauses which deal with the issue. An analysis of the three-fifths compromise, the slave trade clause, and the fugitive-slave law all point to the Framers intentions in the creation of the Constitution and prove that it neither authorized nor prohibited slavery.

The first indication of slavery in the Constitution appears in Article I, Section 2. This is the three-fifths clause that explains the apportionment of representation and taxation. It reads:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three-fifths of all other Persons.

Thus this clause explains that the number of persons in each state, for the purpose of representation and taxation, is to be determined by adding to the whole number of free persons three fifths "of all other Persons" The phrase " free Persons" is followed by an explanation that in addition to free citizens, all people bound to service for a term of years, such as an indentured servant, are also included in the total number for representation. Indians, which are not taxed, are excluded from the population to be represented.

Although the word slavery is not mentioned, "all other Persons" implies it. The clause explicitly makes reference to all other social or economic classes of the time, namely free people, bound servants, and Indians. The only economic class it does not refer to by name is that of slaves. This proves the reluctance of the Founders to include slavery in the Constitution.

The three-fifths compromise was not an original idea of the men at the Constitutional Convention. Often referred to as the "federal ratio," this method of counting slaves had previously been debated in the Continental Congress. It was part of a compromise devised by James Madison in 1783 which was initially rejected and then revived by Alexander Hamilton. It was presented as a proposed amendment to the Articles of Confederation in hopes of providing the federal government with a more reliable income. 1 However, it was never put into use until it was implemented by the ratification of the Constitution.

The Constitution and the Framers were criticized as treating slaves as property, but a careful explanation of this clause will prove the opposite. The allocation of seats in Congress and the number of people to be taxed, although it was only three-fifths of the slaves, acknowledged that slaves were considered human beings and not merely property. They were included as people in the total number of those to be represented and taxed, not as the possession of a master. If they had not been included, they then may have been viewed as property, but since they were included, they were considered humans.

The slaves were not viewed as property, but were treated more as a reflection of a wealth-producing capacity. The entire population was used as a measure of wealth-producing power, and each person was considered possible of producing wealth, whether slave or free. Thus the more people in a state, the more capability it had to produce wealth, and the more it could be directly taxed or represented.

Because only three-fifths of the slaves were counted in the population, this did not mean they were part human and part wealth or property. This proportion was meant to imply an estimate of the slaves wealth-producing capacity. Slaves were not considered capable of producing as much wealth as a free man might have the opportunity to produce. A free man could choose his occupation, while a slave was only part of the whole production power of a plantation or a household. These considerations point to the widespread belief that slave labor was relatively insufficient. 2 This could be one indication of the Founders belief that slavery would eventually die out. In this case it would be due to its inefficiency and lack of practicality.

The implementation of the three-fifths clause augmented representation in the South in the House of Representatives by 30 percent or more. 3 Obviously for representation purposes the South favored the three-fifths clause, but it preferred that the Slaves not be counted in taxation. More people to account for meant more taxes to pay. But, overall they favored it because of the legislative advantage it gave them. The three-fifths clause was just one of the compromises that allowed the states to unite under a common set of laws. As Alexander Hamilton later remarked, "no union could have possibly been formed" without the federal ratio. 4

Oddly enough the clause never became a controversial public issue; "…it was too securely locked into the constitutional system" 5 Once it had been adopted it was accepted as the standard. And, it remained the standard until it was repealed by the ratification of the Fourteenth Amendment in 1868. The second section of that amendment no longer called for representation to be apportioned partly by those bound to service or "all other Persons." Representation then counted "the whole number of persons in each State" (excluding Indians not taxed).

The next mention of the institution of slavery in the Constitution is found in Article I, Section 9. Once again it is not mentioned by work, but it is implied. This section deals with issues of importation and taxation of the slave trade. It reads:

The Migration and Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This is a clause which must be carefully read and analyzed. It implies much more than a mere surface reading will bring to attention. First, the phrase "Migration and Importation of such Persons" implies the slave trade. Goods may be called imports, but if people are referred to as imports, it can mean nothing other than slavery. &quote;States now existing" can mean only the original thirteen colonies which were already established at the ratification of the Constitution. This clause could not pertain to any states formed after the Constitution was established. Therefore, any territories that were later created could not participate in the importation of slaves. Also, the phrase "shall think proper to admit" implies that the states are free to choose to import slaves.

The clause then goes on to explain that the migration or importation of slaves cannot be prohibited by Congress prior to the year 1808. However, a tax or duty can be imposed on the importation of slaves as long as it does not exceed ten dollars per person.

The fact that Congress cannot abolish the slave trade until 1808, and also the inclusion of the tax provision, are variations or restrictions on the power of Congress. Article I, Section 8 of the Constitution gives Congress the power to lay and collect taxes and duties and to regulate commerce with foreign nations, among states, and with Indian tribes. The provisions in Section 9 guard against amendment or changes to the slave trade. Otherwise Congress would have had the right to regulate the trade by the powers expressed in Section 8.

This clause, another compromise between the North and South, indicated that "The Framers recognized that taxes might be used, properly or otherwise, to accomplish social-political purposes, and these provisions are intended to guard against the use of tax power to discourage, if not even to abolish, the international slave trade before 1808." 6 The tax provision limits the ability of Congress to control the trade and guards against the use of the tax power to either discourage or abolish slave importation. If the tax were to go above ten dollars per person, it would have been more difficult for slave owners to afford purchasing slaves. Thus the slave trade was completely protected until 1808.

This clause is evidence of the fact that the Framers anticipated the possibility of evasions of the restrictions they created. The clause also seems to point to the vulnerability and unpopularity of the slave trade. 7 If the trade had not been questioned, this clause may have never been included in the Constitution. In a way, it legitimized the future abolition of the slave trade. The provisions seem to hint to the fact that had the clause not been put there, Congress could have immediately abolished the trading of slaves. Congress did in fact abolish it as soon as the clause allowed it toJanuary 1, 1808.

This clause was critical to the southern states acceptance of the Constitution. South Carolina and Georgia persuaded the Constitutional Convention that they, along with North Carolina, would not accept the Constitution without the guarantee of the protection of the slave trade. It is just one more indication of the issues and compromises the Framers had to wrestle with in order to create and preserve the Union.

The next reference to slavery in the Constitution is found in Article IV, Section 2. This is the fugitive-slave clause which reads:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom Service or Labour may be due.

This clause explains that no person held in service (which implied slavery) or labor in one state, and under that states laws, can escape into another state and be relieved of his services. Even if a slave escapes to a free state with laws prohibiting slavery, he still must be returned to his rightful owner to whom he owes his services in the slave state. He is still a slave no matter where he is, as long as he belongs to his master. This point would later be discussed in the opinion of the Supreme Court in the Dred Scott decision. This clause "…became the basis for the more notorious kind of federal intervention in behalf of the institution." It provided for the enforcement of returning slaves anywhere in the Union to their rightful master.

The clauses wording was very ambiguous and seemed to include apprentices and anyone else bound to service for a limited period. "…it drew no distinction between free ad non-free persons." It was "[N]ot in what it said, but only how it was universally understood,…[that] the so-called fugitive-slave clause acknowledge[d] the existence of slavery in America." 8 As with the other clauses, this one also did not use the word slavery, but it was understood to pertain to slaves.

The fugitive-slave clause is also distinguishable from the one that precedes it in Article IV, Section 2. This clause explains that "A Person charged in any State with Treason, Felony, or other Crime" who flees from justice shall be delivered to the state having jurisdiction over the crime. This clause more clearly indicates the type of person sought out to be returned to a state. Its wording refers to criminal activity, while the clause following it refers to a person held in service or labor.

There is also a distinguished difference between the actual wording in the first clause and the wording in the second clause. The fugitive in the first clause is referred to as "flee[ing] from Justice," while the slave is referred to as "escaping" from "Service or Labour in one State." Thus, the fugitive-slave clause clearly refers to slavery.

The placement of the fugitive-slave clause in Article IV and not in Article I "…suggests that it was designed as a limitation on state authority and not as an extension of federal power and responsibility." 9 Article IV outlines the powers of the states and not the powers of the federal government. This clause reminds us that slavery is an issue of state, not federal, laws. Also, the fact that not all states permitted slavery suggests that slave laws may have been considered unjust by non-slave states.

Because the provision requires slaves to be returned to their owners, it implies that "…the Free States could not be relied upon to return slaves who escaped into them." 10 Thus there was no strong national support for slavery other than in the South. This is one more indication that the institution of slaver was controversial and unpopular.

Oddly enough, this clause was not considered a significant issue in the Constitutional Convention. It was introduced late in the proceedings and aroused little debate. It was readily accepted by unanimous approval. 11 However, the fugitive-slave clause was repealed by the ratification of the Thirteenth Amendment which abolished slavery in 1865.

The three clauses of the Constitution&#151the three fifths compromise, the importation of slaves, and the fugitive-slave law&#151indicate many views of the country at the time of the adoption of the Constitution. These clauses demonstrate the fact there was not ruling principle on slavery. The wording was very ambiguous, and the provisions regarding slavery were mainly for the sake of compromise and the perpetuation of the Union.

The Constitution neither authorized or prohibited slavery. The Framers had not expected to outlaw slavery, but came to the Convention to create a Constitution for the country as they knew it existed and also as is would exist in the future. Since slavery was part of the Union, it had to be dealt with tactfully, and the Framers chose to do this by not explicitly using the words "slave" or "slavery," but by creating several compromises. The Union was young and frail and needed agreement and acceptance by all the states. This, of course, meant that because each state had different interests, compromises needed to be made in order to create a document that best represented the Union as a whole.

In a way, the Framers acknowledged slavery while also limiting it. Even though many of the Framers were opposed to slavery, they knew it was necessary to tolerate it for the perpetuation of the Union. They treated it as a necessary evil and believed that it would eventually die out. They foresaw that slaverys importance would eventually diminish, but they needed a Constitution that would guide them through both the present and the future of the Union.

It is as though the framers were half-consciously trying to frame two constitutions, one for their own time and the other for the ages, with slavery viewed bifocallythat is, plainly visible at their feet, but disappearing when they lifted their eyes.

A comparison and analysis of all three clauses that dealt with slavery point to the fact that slavery was neither widely accepted nor expected to continue. All three clauses referred to slaves as "Persons" and not property. Also, the fact that the word "slave" was never written in the Constitution demonstrated that slavery was not accepted by all the Framers, and they hoped it would be eliminated. They did not want to explicitly refer to slavery in a document that was supposed to stand the test of time, if the institution would inevitably die out.

Also, the protection of the slave trade only until 1808 indicated that Congress was likely to abolish it, which they soon did. As further proof of the inevitable end of slavery, neither the three-fifths compromise nor the fugitive-slave clause was offered any protection under the Constitution, as the slave trade had been protected from amendment. The limitation of the slave trade to only the original states and then the adoption of the Northwest Ordinance, which prohibited slavery in the territories, also indicated that slavery was the exception rather than the rule.

Therefore, a close examination of the Constitution and the attitudes of the Framers indicates that the Constitution was not a pro-slavery document. It was, however, a document that incorporated compromise of the opinions of the Framers and of each of the interests they represented. The Founding Fathers realized slavery was not an infinite institution, but that it would eventually die out. They therefore created a document that represented the Union as it stood in 1787, and also as it would stand in the future. Some provisions had to be made for slavery while also leaving the Constitution open to debate and change if and when slavery would be abolished. The most important point to remember is that the Constitution was established to uphold the perpetuation of the Union and the rights and liberties of its citizens.

Susan L. Boyd is a senior from Willard, Ohio, majoring in History and Political Science.